IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
February 27, 2013
STEPHEN ECHOLS, PLAINTIFF,
MORPHO DETECTION, INC.; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TRANSPORTATION SECURITY AGENCY; AND JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS SECRETARY OF HOMELAND SECURITY, DEFENDANTS.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS (Docket No. 36) AND CONTINUING CASE MANAGEMENT CONFERENCE
United States District Court For the Northern District of California
Defendants United States Department of Homeland Security (DHS), Transportation Security Agency (TSA) and Secretary of 14 Homeland Security Janet Napolitano (collectively, Federal 15 Defendants) move to dismiss three of the claims asserted against 16 them by Plaintiff Stephen Echols. Plaintiff opposes their motion 17 and, in his opposition brief, requests leave to bring additional 18 claims against them. The Court takes Federal Defendants' motion 19 under submission on the papers and GRANTS it. The Court also 20 grants Plaintiff leave to file a motion for leave to amend his 21 complaint to assert new claims against Federal Defendants. 22
The following facts are taken from Plaintiff's first amended 24 complaint (1AC). 25
In September 2004, Plaintiff began working for Invision Technologies. 1AC ¶ 8. That company became or was acquired by 27 Defendant Morpho Detection, Inc. in or about 2009. Id. Morpho 28 Detection has contracts with DHS and TSA to provide airport 2 security. Id. at ¶ 9. Plaintiff was employed as a field service 3 technician at the Los Angeles International Airport. Id. at ¶ 8. 4
Prior to March 9, 2010, Plaintiff passed all government 5 airport and company background checks that he underwent. Id. 6 In or around January 2010, TSA required all of Morpho Detection's engineers, including Plaintiff, to undergo an "eQuip 8 background investigation." Id. at ¶ 10. 9
Plaintiff received a letter from TSA dated March 9, 2010, 10 stating that he was "ineligible to work on any TSA contract based on the following issues identified during" the background investigation: 13
* GRAND THEFT, $/LABOR/PROP $400, 1/1/2007, Gardena Police Department, CA.
* BURGLARY OF IDENT/ 1 COUNT OF THREATEN CRIME WITH INTENT TO TERRORIZE/ 1 COUNT STALKING, 2/9/1999, 17 Superior Court Los Angeles, CA. Sentence: CONVICTED, probation/jail 240 days/36 months.
* MAIMING/ASSAULT & BATTERY, 11/25/1990, Hampton Police Department, VA. Sentence: 6 months suspend, 6 months for 5 years.
* You failed to list most recent charge, GRAND THEFT, $/LABOR/PROP $400, on your SF85P. 23 1AC ¶ 11, Ex. 2 (all errors in original).*fn1
Plaintiff alleges that he was not the person who committed 2 the crimes identified in the first or second items under "Criminal 3 Conduct" or the item under "Honesty" and that he "was the victim 4 of identity theft." Id. at ¶ 13. He also alleges that the third 5 item under "Criminal Conduct" was "inaccurate in that the 6 plaintiff recalls the case was dismissed." Id. 7
In March 2010, Plaintiff received a telephone call from his 8 manager, David Fox, who told him that he was being placed on 9 suspension with pay. Id. at ¶ 15. Plaintiff was terminated on 10 March 31, 2010. Id. at ¶ 16.
After he received the letter from the TSA, Plaintiff communicated "with TSA and Morpho explaining the identity theft 13 issue and the alleged conviction in 1990." Id. at ¶ 15. Despite 14 his repeated requests, TSA failed to provide Plaintiff with a copy 15 of his background report. Id. 16
Plaintiff filed this case on March 29, 2012, originally 12 17 asserting claims against Morpho Detection only. Docket No. 1. On 18 October 12, 2012, the Court granted the parties' stipulation to 19 allow Plaintiff to file his 1AC. Docket Nos. 23, 25. 20
In his 1AC, Plaintiff asserts four claims against Federal 21 Defendants: (1) willful violation of the Fair Credit Reporting Act 22 (FCRA), 15 U.S.C. §§ 1681-1681x; (2) negligent violation of the 23 FRCA; (3) violation of the Freedom of Information Act (FOIA), 5 24 U.S.C. § 552; and (4) declaratory relief that Plaintiff is 25 eligible to be employed by the federal government or organizations 26 that require passage of the eQuip background check. As relief for 27 his FCRA claims, among other things, Plaintiff seeks "damages 28 exceeding $300,000.00 which is the approximate equivalent of four 2 (4) years of salary with the related benefits." 1AC ¶¶ 23, 25. 3 Federal Defendants move to dismiss the FCRA claims and 4 declaratory relief claim. In the instant motion, they do not seek 5 to dismiss the FOIA claim. 6
I. Federal Rule of Civil Procedure 12(b)(1) 8 Subject matter jurisdiction is a threshold issue which goes 7 United States District Court For the Northern District of California 9 to the power of the court to hear the case. Federal subject 10 matter jurisdiction must exist at the time the action is 11 commenced. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). A federal 13 court is presumed to lack subject matter jurisdiction until the 14 contrary affirmatively appears. Stock W., Inc. v. Confederated 15 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). 16
Dismissal is appropriate under Rule 12(b)(1) when the 12 17 district court lacks subject matter jurisdiction over the claim. 18 Fed. R. Civ. P. 12(b)(1). Once subject matter jurisdiction has 19 been challenged, the plaintiff has the burden of establishing its 20 existence. Rattlesnake Coal. v. United States Envtl. Prot. 21 Agency, 509 F.3d 1095, 1102 n.1 (9th Cir. 2007). 22
"A Rule 12(b)(1) jurisdictional attack may be facial or 23 factual." Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 24 (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). "In a 25 facial attack, the challenger asserts that the allegations 26 contained in a complaint are insufficient on their face to invoke 27 federal jurisdiction." Id. 28
When a facial attack is made, the court's inquiry is confined 2 to the allegations in the complaint. Savage v. Glendale Union 3 High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003) 4 (citation omitted). Review is similar to that of a motion made 5 under Rule 12(b)(6) and the allegations made in the complaint are 6 taken as true and construed in the light most favorable to the 7 plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 8 1989). 9
Because Federal Defendants do not submit any evidence beyond 10 the complaint with their motion and instead contend that the 11 allegations set forth in Plaintiff's 1AC, even if true, are insufficient on their face to invoke federal jurisdiction, they 13 raise a facial attack on jurisdiction. 14
II. Federal Rule of Civil Procedure 12(b)(6) 15
A complaint must contain a "short and plain statement of the 12 16 claim showing that the pleader is entitled to relief." Fed. R. 17 Civ. P. 8(a). On a motion under Rule 12(b)(6) for failure to 18 state a claim, dismissal is appropriate only when the complaint 19 does not give the defendant fair notice of a legally cognizable 20 claim and the grounds on which it rests. Bell Atl. Corp. v. 21 Twombly, 550 U.S. 544, 555 (2007). In considering whether the 22 complaint is sufficient to state a claim, the court will take all 23 material allegations as true and construe them in the light most 24 favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 25 896, 898 (9th Cir. 1986). However, this principle is inapplicable 26 to legal conclusions; "threadbare recitals of the elements of a 27 cause of action, supported by mere conclusory statements," are not 28 taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 2 (citing Twombly, 550 U.S. at 555). 3
A statute of limitations defense may be raised by a motion to 4 dismiss if the running of the relevant statute of limitations is 5 apparent on the face of the complaint. Ledesma v. Jack Stewart 6 Produce, Inc., 816 F.2d 482, 484 n.1 (9th Cir. 1987). When a 7 motion to dismiss is based on the running of a statute of 8 limitations, the motion can be granted "only if the assertions of 9 the complaint, read with the required liberality, would not permit 10 the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (citation omitted). 13
When granting a motion to dismiss, the court is generally 12 14 required to grant the plaintiff leave to amend, even if no request 15 to amend the pleading was made, unless amendment would be futile. 16 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 17 F.2d 242, 246-47 (9th Cir. 1990). In determining whether 18 amendment would be futile, the court examines whether the 19 complaint could be amended to cure the defect requiring dismissal 20 "without contradicting any of the allegations of [the] original 21 complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 22 Cir. 1990). 23
Although the court is generally confined to consideration of 24 the allegations in the pleadings, when the complaint is 25 accompanied by attached documents, such documents are deemed part 26 of the complaint and may be considered in evaluating the merits of 27 a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 28 1265, 1267 (9th Cir. 1987).
Federal Defendants move to dismiss Plaintiff's FCRA and 3 declaratory relief claims on several bases. First, they contend 4 that FCRA does not waive sovereign immunity for damages claims 5 against the government. Second, they argue that the claims are 6 non-justiciable and that judicial review of a security clearance 7 determination is not available. Third, they maintain that 8 Plaintiff has not stated a claim for relief under the FCRA. 9
Further, they argue that the FCRA claims are barred by the statute 10 of limitations. Finally, they contend that Plaintiff has not identified any tenable basis for his declaratory relief claim.
I. Sovereign Immunity 13
"It is axiomatic that the United States may not be sued 12 14 without its consent and that the existence of consent is a 15 prerequisite for jurisdiction." United States v. Mitchell, 463 16 U.S. 206, 212 (1983). "The doctrine of sovereign immunity applies 17 to federal agencies and to federal employees acting within their 18 official capacities." Hodge v. Dalton, 107 F.3d 705, 707 (9th 19 Cir. 1997) (quoting South Delta Water Agency v. Dep't of Interior, 20 767 F.2d 531, 536 (9th Cir. 1985)). "A waiver of the Federal 21 Government's sovereign immunity must be unequivocally expressed in 22 statutory text . . . and will not be implied . . ." Lane v. Pena, 23 518 U.S. 187, 192 (1996) (citations omitted). "Any ambiguities in 24 the statutory language are to be construed in favor of immunity, 25 . . . so that the Government's consent to be sued is never 26 enlarged beyond what a fair reading of the text requires, . . ." 27 Fed. Aviation Agency v. Cooper, 132 S. Ct. 1441, 1448 (2012) 28 (internal citations omitted). "Ambiguity exists if there is a plausible interpretation of the statute that would not authorize 2 money damages against the Government." Id. 3
Plaintiff contends that the FCRA contains an express waiver 4 of sovereign immunity. He points out that the FCRA defines 5 "person" to mean "any individual, partnership, corporation, trust, 6 estate, cooperative, association, government or governmental 7 subdivision or agency, or other entity," 15 U.S.C. § 1681a 8 (emphasis added), and that it states, "Any person who willfully 9 fails to comply with any requirement imposed under this title with 10 respect to any consumer is liable to that consumer . . ." 15 U.S.C. § 1681n (emphasis added). See also 15 U.S.C. § 1681o (similar provision imposing liability on "any person" who 13 negligently fails to comply with the FCRA's requirements). 14
Plaintiff does not maintain that any statute other than the FCRA 15 is the source of a waiver of sovereign immunity for the damages 16 claims that he has asserted here. 17
Although neither the Ninth Circuit nor the Supreme Court has 12 18 addressed the issue, most courts that have done so have held that 19 the FCRA does not contain an unequivocal waiver of sovereign 20 immunity in its text. See Taylor v. United States, 2011 WL 21 1843286, at *5 (D. Ariz.) (holding that the plaintiff had not 22 shown an unequivocal waiver of sovereign immunity under the FCRA); 23 Gillert v. United States Dep't of Educ., 2010 WL 3582945, at *3-4 24 (W.D. Ark.) (same); Ralph v. U.S. Air Force MGIB, 2007 WL 3232593, 25 at *3 (D. Colo.) (same); Kenney v. Barnhart, 2006 WL 2092607, at 26 *9 (C.D. Cal.) (same); but see Talley v. U.S. Dep't of Agric., 27 2007 WL 2028537, at *2 (N.D. Ill.) (finding waiver of sovereign 28 immunity in the FCRA), aff'd on other grounds, 595 F.3d 754 (7th Cir. 2010) (finding waiver of sovereign immunity in the Tucker 2 Act), vacated, 2010 U.S. App. LEXIS 12927, judgment affirmed by 3 equally divided court on reh'g en banc, 2010 WL 5887796 (7th Cir. 4 2010). 5
Although he has quoted the statutory text, Plaintiff has not 6 shown that these provisions contain an unequivocal waiver of 7 sovereign immunity. He has also failed to address the numerous 8 decisions in which other courts have held that they do not. 9
Further, the Court notes that most other federal statutes that 10 have unequivocally waived sovereign immunity have done so in much clearer terms than the statutory provisions at issue here. For 12 example, the Federal Tort Claims Act authorizes "claims against 13 the United States, for money damages . . . for injury or loss of 14 property or personal injury or death caused by the negligent or 15 wrongful act or omission of any employee of the Government while 16 acting within the scope of his office or employment . . ." 28 17 U.S.C. § 1346(b)(1); see also 42 U.S.C. § 2000e-5(k) ("In any 18 action or proceeding under this subchapter . . . the United States 19 shall be liable for costs the same as a private person."); 26 20 U.S.C. § 7433(a) ("If, in connection with any collection of 21 Federal tax with respect to a taxpayer, any officer or employee of 22 the Internal Revenue Service . . . disregards any provision of 23 this title . . . such taxpayer may bring a civil action for 24 damages against the United States."). In fact, a separate 25 provision of the FCRA itself contains an express waiver of 26 sovereign immunity for certain violations that is stated in 27 unequivocal terms. See 15 U.S.C. § 1681u(i) ("Any agency or 28 department of the United States obtaining or disclosing any consumer reports, records, or information contained therein in 2 violation of this section is liable to the consumer . . ."). 3
Like the plaintiff in Al-Malik v. United States Department of Education, 2011 U.S. Dist. LEXIS 96753 (N.D. Cal.), Plaintiff has 5 not shown that sovereign immunity has been waived and thus that 6 this Court has subject-matter jurisdiction over his FCRA claims 7 against Federal Defendants. 8
Accordingly, the Court GRANTS Federal Defendants' motion to 9 dismiss the FCRA claims for lack of subject matter jurisdiction. 10
II. Failure to State a Claim for Relief under the FCRA 11
Even if sovereign immunity were waived for Plaintiff's FCRA 12 claims against Federal Defendants, he has failed to state a claim 13 for relief against them under that statute. In his first and 14 second causes of action, Plaintiff alleges simply that Federal 15 Defendants willfully and negligently "failed to comply with the 16 requirements of the Fair Credit Reporting Act, 15 U.S.C. 1681 et 17 seq." 1AC ¶¶ 23, 25. In his opposition brief, Plaintiff contends 18 that the FCRA creates liability for "consumer reporting agencies" 19 and "users of information" and that he has alleged that Federal 20 Defendants are "users of information" under FCRA and that they 21 "did not follow procedures to ensure maximum possible accuracy in 22 the background report 15 U.S.C. § 1681i, did not properly handle 23 his dispute 15 U.S.C. § 1681c and e, nor maintain strict 24 25 26 27 28 procedures to ensure the information was complete and up to date 2 15 U.S.C. § 1681k." Opp. at 10 (all errors in original).*fn2
However, these code sections impose obligations on "consumer 4 reporting agencies" and not on "users of information." See 15 5 U.S.C. § 1681k(a) ("A consumer reporting agency which furnishes a 6 consumer report for employment purposes . . . shall . . . maintain 7 strict procedures designed to insure that whenever public record 8 information which is likely to have an adverse effect on a 9 consumer's ability to obtain employment is reported it is complete 10 and up to date.") (emphasis added); 15 U.S.C. § 1681e (b) ("Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible 13 accuracy of the information concerning the individual about whom 14 the report relates.") (emphasis added); 15 U.S.C. § 1681i(a)(1)(A) 15 ("if the completeness or accuracy of any item of information 16 contained in a consumer's file at a consumer reporting agency is 17 disputed by the consumer and the consumer notifies the agency 18 directly, or indirectly through a reseller, of such dispute, the 19 agency shall, free of charge, conduct a reasonable reinvestigation 20 to determine whether the disputed information is 21 inaccurate . . .") (emphasis added); 15 U.S.C. § 1681c(f) ("If a 22 consumer reporting agency is notified pursuant to section 23 623(a)(3) that information regarding a consumer who was furnished 24 to the agency is disputed by the consumer, the agency shall 2 indicate that fact in each consumer report that includes the 3 disputed information.") (emphasis added); 15 U.S.C. § 1681c-2(a) 4 ("a consumer reporting agency shall block the reporting of any 5 information in the file of a consumer that the consumer identifies 6 as information that resulted from an alleged identity theft"). 7
Plaintiff has not alleged or argued that any Federal Defendant is a consumer reporting agency as defined in the FCRA. 9 8 Nor could he. See Ollestad v. Kelley, 573 F.2d 1109, 1111 (9th 10 Cir. 1978) (stating that "the Federal Trade Commission, the agency charged with administering the FCRA, has concluded that federal agencies are not consumer reporting agencies within the meaning of 13 the act" and that this "reasoned conclusion is entitled to our 14 deference"). 15
Accordingly, the Court GRANTS Federal Defendants' motion to 12 16 dismiss the FCRA claims for failure to state a claim. Even if 17 Plaintiff had shown that subject matter jurisdiction existed over 18 these claims, dismissal under Rule 12(b)(6) would be with 19 prejudice because Plaintiff could not remedy through amendment 20 this deficiency so as to state a claim under any section of the 21 FCRA that he has identified. Because the Court grants the motion 22 to dismiss for lack of subject matter jurisdiction and failure to 23 state a claim, the Court does not reach Federal Defendants' 24 alternative argument, that the FCRA claims are barred because the 25 two year statute of limitations had run before Plaintiff filed his 26 complaint. 27 28
III. Justiciability 2
Federal Defendants also argue that Plaintiff's claims are 3 non-justiciable because judicial review of a security clearance 4 determination is not available and here Plaintiff seeks a finding 5 that his security clearance was improperly denied. 6 In response, Plaintiff argues that he is bringing claims that 7 he was denied the right to earn a living in his chosen profession 8 without notice or hearing, apparently suggesting he is asserting a 9 procedural challenge, not a substantive challenge, to the 10 decision. However, as discussed above, Plaintiff did not state in 11 the 1AC what conduct he is alleging was a violation of the FCRA.
The 1AC appears to present both procedural and substantive 13 challenges to Federal Defendants' denial of his background 14 clearance. See 1AC, 8 (requesting a "judicial determination 15 finding him eligible to be employed by the Federal government or 16 organizations that require passage of the security clearance known 17 as an eQuip background check"); 1AC ¶ 20 (alleging that Federal 18 Defendants "failed and refused to reinvestigate to confirm or 19 disclaim the accuracy of the information" in the background 20 investigation in violation of the law). In addition, in his 21 opposition, rather than basing his arguments on a violation of the 22 procedures set forth in FCRA, Plaintiff appears to be arguing that 23 his constitutional due process rights have been violated. Opp. at 24 4 (citing FCRA and addressing revocation of the security clearance 25 without notice or hearing and depriving him of a constitutionally-26 protected liberty interest). 27
To the extent that Plaintiff seeks a judicial determination 28 that he should be granted a security clearance and deemed eligible for employment in positions requiring such a clearance, those 2 claims are non-justiciable under the principles set forth in a 3 line of Supreme Court and Ninth Circuit cases. This includes the 4 sole basis for his declaratory relief claim that is apparent in 5 his 1AC. 6
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that employment decisions based on the 8 executive branch's security clearance decisions are not reviewable 9 by the Merit Systems Protection Board (MPSB). In that decision, 10 the Court held that "the grant of security clearance to a 11 particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of 13 the Executive Branch." Id. at 527. "[T]he President[,] as head 14 of the Executive Branch and as Commander in Chief," has "authority 15 to classify and control access to information bearing on national 16 security and to determine whether an individual is sufficiently 17 trustworthy to occupy a position in the Executive Branch that will 18 give that person access to such information . . ." Id. The 19 decision to grant or deny a security clearance requires the type 20 of "[p]redictive judgment" that "must be made by those with the 21 necessary expertise in protecting classified information." Id. at 22 529. Thus, "[f]or reasons too obvious to call for enlarged 23 discussion, the protection of classified information must be 24 committed to the broad discretion of the agency responsible, and 25 this must include broad discretion to determine who may have 26 access to it." Id. (internal formatting, quotation marks and 27 citations omitted). Accordingly, the Court concluded that the 28 MPSB, as an "outside non-expert body," could not "review the 2 substance of such a judgment . . ." Id. 3
Then, in Webster v. Doe, 486 U.S. 592 (1988), the Supreme Court confirmed that federal courts do not have jurisdiction to 5 review the merits of decisions regarding security clearances. It 6 held that the CIA director's decision to terminate a CIA employee 7 for a security reason was committed to the discretion of the 8 director by law, thereby precluding judicial review under the 9 Administrative Procedures Act (APA). Id. at 601. It found, 10 however, that the same considerations did not deprive the courts 11 of jurisdiction to review constitutional claims and remanded for 12 further proceedings. Id. at 603-04. The Court did not decide 13 whether the plaintiff had in fact presented colorable 14 constitutional claims. Id. at 604 n.8. There, the plaintiff 15 alleged that the CIA unconstitutionally discriminated against 16 homosexuals in making security clearance determinations. Id. at 17 601-02. 18
Later, in Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990), 19 the Ninth Circuit extended Egan to bar judicial review of the 20 merits of a decision regarding a security clearance. In that 21 case, the plaintiff sued the Department of Defense "seeking an 22 injunction against the revocation of her security clearance," 23 arguing that the decision violated her constitutional "rights to 24 procedural and substantive due process." Id. at 1400. The court 25 stated that, although Egan's holding was limited to the MPSB, 26 "[t]he logic of that decision precludes judicial review as well." 27
Id. at 1401. "When it comes to security matters, a federal court 28 is 'an outside non-expert body.' We have no more business reviewing the merits of a decision to grant or revoke a security 2 clearance than does the MPSB." Id. (quoting Egan, 484 U.S. at 3 529). The court stated, "Although Dorfmont fashions her claims as 4 due process challenges," her arguments--save two--were in fact 5 "attacks on the merits of the decision to lift her security 6 clearance." Id. The court held that "the district court has no 7 authority to review" those challenges to the merits of the 8 security clearance decision. Id. at 1402. As to the two due 9 process challenges, the Dorfmount court held that, although they 10 were justiciable, "a claim for denial of due process stemming from 11 revocation of a security clearance is not a colorable constitutional claim." Id. at 1404. 13
Under these cases, to the extent that Plaintiff seeks a 14 determination that he should be deemed to have passed the 15 background clearance, his FCRA and declaratory relief claims are 16 barred. This Court does not have the jurisdiction to review the 17 merits of Federal Defendants' decision regarding Plaintiff's 18 background investigation. 19
Instead of defending his claims that challenge the outcome of 20 the background investigation, Plaintiff argues instead that he has 21 asserted justiciable claims that challenge the procedures accorded 22 to him. In support, Plaintiff cites cases that address claims for 23 violation of the due process clause in the context of background 24 investigations and security clearances. See Greene v. McElroy, 25 360 U.S. 474 (1959); Kartseva v. Dep't of State, 37 F.3d 1524 26 (D.C. Cir. 1994); Baillargeon v. Drug Enforcement Adm., 638 F. 27 Supp. 2d 235 (D. R.I. 2009). Plaintiff, however, has not asserted 28 any such constitutional claims in his 1AC.
Accordingly, because Plaintiff's declaratory relief and FCRA 2 claims seek a determination that he should be granted the security 3 clearance, the Court finds that they are not justiciable and 4 dismisses them without leave to amend. Because Plaintiff has not 5 plead a claim for violation of his procedural due process rights 6 in the background investigation, the Court declines to address 7 whether any such hypothetical claims would be justiciable. 8
IV. Declaratory Relief Claim 9
Federal Defendants contend that Plaintiff has not identified 10 any proper jurisdictional basis for his declaratory relief claim.
The Declaratory Judgment Act (DJA) provides that "any court of the United States, upon the filing of an appropriate pleading, 13 may declare the rights and other legal relations of any interested 14 party seeking such declaration, whether or not further relief is 15 or could be sought." 28 U.S.C. § 2201(a). The "DJA expanded the 16 scope of the federal courts' remedial powers" but it did not 17 create or modify the courts' jurisdiction, "which must properly 18 exist independent of the DJA." Countrywide Home Loans, Inc. v. 19 Mortg. Guar. Ins. Corp., 642 F.3d 849, 853 (9th Cir. 2011). "In 20 other words, federal courts have discretion under the DJA only as 21 to whether to award declaratory relief pursuant to the 22 jurisdiction that they must properly derive from the underlying 23 controversy between the litigants." Id. 24
In his response, Plaintiff asserts that the APA provides a 12 25 valid basis for declaratory relief. Plaintiff, however, has not 26 cited the APA in his 1AC or asserted any claim for relief under 27 the APA in his current pleading. Instead, in his opposition 28 brief, Plaintiff seeks leave to amend to add an APA claim and a constitutional claim. Because Plaintiff does not appear to 2 dispute that he has provided no proper jurisdictional basis for 3 his declaratory relief claim as plead in his 1AC, the Court grants 4 Federal Defendants' motion to dismiss this claim. 5
V. Plaintiff's Request for Leave to Amend to Assert New Claims 6
In his opposition, Plaintiff requests leave to amend to 7 assert new claims under the APA, the due process clause of the 8 Fifth Amendment or both, which are not plead in his 1AC. 9
Plaintiff has improperly presented this request in an 10 opposition brief and has not moved for permission to add new 11 claims, as required by the Federal Rules of Civil Procedure and the Civil Local Rules of this Court. See Federal Rule of Civil 13 Procedure 7(b)(1) ("A request for a court order must be made by 14 motion."); Civil Local Rules 7-1 and 7-2. Plaintiff also does not 15 address whether leave to amend should be granted pursuant to 16 Federal Rule of Civil Procedure 15(a) or the five factors that 17 courts consider when assessing the propriety of a motion for leave 18 to amend: undue delay, bad faith, futility of amendment, prejudice 19 to the opposing party and whether the plaintiff has previously 20 amended the complaint. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 21 F.3d 1051, 1055 n.3 (9th Cir. 2009). Finally, Plaintiff does not 22 provide his proposed pleading as required by Civil Local Rule 10-1 23 and it is not clear what his proposed claims would be. 24
Accordingly, the Court denies Plaintiff's improper request 12 25 for leave to assert new claims, without prejudice to Plaintiff 26 renewing his request in a properly filed motion within two weeks 27 of the date of this Order, as set forth below. 28
For the reasons set forth above, the Court GRANTS Federal Defendants' motion to dismiss (Docket No. 36). Plaintiff's claims 4 for violation of the FCRA against Federal Defendants and his 5 declaratory relief claim are DISMISSED without leave to amend. 6
Within two weeks of the date of this Order, Plaintiff may 3 7 file a motion for leave to amend his complaint to add new claims 8 against Federal Defendants under the APA or the due process 9 clause, including a declaratory relief claim based on these 10 provisions. With any such motion, Plaintiff shall attach his proposed amended complaint and shall address why leave to amend should be granted. If Plaintiff files a motion for leave to 13 amend, Federal Defendants shall file a response within two weeks 14 thereafter, Plaintiff shall file a reply within one week 15 thereafter and the Court will resolve the motion for leave to 16 amend on the papers. 17
The case management conference currently set for Thursday, 12 March 7, 2013, at 2:00 p.m. is CONTINUED to Wednesday, April 24, 19 2013, at 2:00 p.m. 20
IT IS SO ORDERED.